Does anyone know anything about the Social Security (Lone Parents and Miscellaneous Amendments) Regulations 2008?

My friend is affected by this new legislation which requires lone parents with school-age children to come off Income Support and claim JSA. She has twin girls, who are 14 years old and home educated, and has now been on JSA since April.

She is appealing the decision to stop her IS, and her argument is that there is no other benefit she is lawfully entitled to receive. The appeal has now reached the Upper Tribunal stage, and it seems likely that Judicial Review will have to be sought.

The rules clearly state that in order to be entitled to JSA a claimant must be available for and actively seeking work. My friend is now applying for the required three jobs per week but her availability for work is in question, and her JSA has been suspended pending a decision on her availability for work.

The reason that she is unable to take up work is due to the fact that she cannot find anyone to look after her girls whilst she is at work. They are not able to take care of themselves, and therefore cannot be left alone in the house. Because they are home educated they cannot take advantage of the 'wrap-around' childcare offered at schools, and are too old for any childminders in the area. The only option would ne a nanny, but they must be OFSTED registered in order for my friend to qualify for reimbursement of the fees. The problem with this is that there are no OFSTED registered nannies to be had.

The Secretary of State for Work and Pensions - who introduced the new Regulations - made assurances that there would be childcare put in place for all lone parents, and gave Borough Councils the task of seeing that it was. Despite the rhetoric there is currently no suitable childcare available in this area, nor is there likely to be any time soon.

So, my friend has not received JSA for eight weeks due to a doubt on her claim regarding her actively seeking work (this is being appealed as no decision made on the doubt yet, and she started to apply for jobs, so should get backdated JSA for most of the period), and a week ago she was again notified that there was a 'doubt' for the same reason, but for just the two week period. At the same time she was notified that there was a doubt about her availability for work. Each 'doubt' came with notice of suspension of benefit.

To say the situation is ridiculous would be understating it: under the new Regulations Income Support cannot be paid to a claimant under the circumstances my friend finds herself in, but neither can JSA be paid if she is unable to take up work within 28 days of it being offered. Unless she can find childcare for her twins she cannot go out to work, and as there is no suitable childcare whatsoever she is, in all reality, actually not available for work. She has had no choice but to apply for jobs which she cannot possibly take up in order to fulfill her jobseeking requirements, but what can she do about her availability for work?

Hopefully her appeal against her IS being stopped will succeed (she alleges that the minister acted ultra vires in introducing the new regulations), and she can appeal any decision on her JSA, but in the meantime she has no money to live on.

Primary legislation requires that all be given money to live on, yet my friend has had hers taken away [could anyone, by the way, pinpoint the legislation re 'money the law says you need to live on''?]. The new regulations require decision makers to take into account childcare provision when deciding whether or not to apply a sanction, but if you aren't available for work you shouldn't be on JSA in the first place. The law says 'no IS', and the law says 'no JSA'.

I am sure many of you will have an opinion about benefit claimants, and about home education, but I'm not looking for a debate on the merits of either - I would really appreciate some input regarding the legalities of it all.

Regards to all caggers.

I dont know much about lone parents who have gone over to JSA from IS under the lone parents obligation scheeme, but by reading your post I can see she may have grounds to win her appeal and can fully understand the situation that she is in.

However the lone parents you were deemed unfit for work and were made to claim ESA instead, the New Incapacity benefit, have been told they should have been able to stay on Income Support and remain there untill they are fit for work and claim

the old Incapacity Benefit, as a lot of them are doing now

So it doesnt look as if things were well thought of first time round

Is she fit for work ?

Thanks for the response, Jack.

She would be fit for work, but she fell down the stairs the other day!

Ill thought out is the perfect description for these new regulations - the SS Advisory Committe had concerns about the lack of suitable childcare, but the Secretary of State went ahead with it regardless.

Primary legislation requires that all be given money to live on, yet my friend has had hers taken away [could anyone, by the way, pinpoint the legislation re 'money the law says you need to live on''?].

I don't there is any specific primary legislation that says that, but it is covered by Articles 3 and 8 of the ECHR (Right not to suffer degrading treatment and right to a family life), and ultimately Article 2 (Right to life) as well. Secondary legislation can be struck down by the courts as ultra vires if it is in breach.

An Article 2 challenge may fail in this case as a person sanctioned from JSA can still receive hardship payments and tax credits to cover the basics of life.

However the very low level of the hardship payments may amount to a breach of Articles 3 and 8, as well as the process of constantly having money stopped and having to make a fresh plea for mercy, as is the case with HPs.

Be aware that the Commissioners (Upper Tribunal) are reluctant to accept this type of argument so it will probably end up going to the higher courts.

Ill thought out is the perfect description for these new regulations - the SS Advisory Committe had concerns about the lack of suitable childcare, but the Secretary of State went ahead with it regardless.

Have you looked up Howker v Secretary of State for Social Security? Changes to regulations there were found ultra vires due to non-compliance with the SSAC, but it's a bit beyond my level of understanding.

If the children are 14 years old now surely they would be ok to be left while she goes to work like hundreds of thousands of others do.

it wont be too long before her own kids are old enough to work themselves

why doesnt she want to work?

p.s. i think her kids would find it extremely objectionable to have a 'babysitter'

It may help to have a fuller picture to know why the kids are home educated and why she feels she can't leave them on their own. Nothing to do with a debate, but is there an element of disability there, reading between the lines?

Regardless of the above, if she's home educating, then she shouldn't have her benefits stopped, as she is effectively having a full-time job, which is educating the children. I take it that the kids are de-registered with the local authority and she can therefore prove that she is HE?

I take it she is aware of Education Otherwise?

Education Otherwise - Home Education Support Charity

If not, she should have a look there.

Incidentally, the criteria as I understand it for JSA is that she must be available for work AND that there is suitable childcare, but again, I get the feeling that this wouldn't necessarily apply to 14 year olds.

PS: She needs to read this http://www.freedomforchildrentogrow.org/notesnewSSloneparentregsoct08.pdf and point out to section running from 4.28 onwards.

Thanks, you lot - always some common sense on this forum.

Can I get back to you in a bit? Bit busy at mo, but will take up a few of the points and look at the links.

Back soon.

Interesting input, Zamzarra.

A breach of Article 8 is alleged in her appeal, and the minister is indeed being accused of acting ultra vires.

I think you are correct: it looks like it will go all the way to Judicial Review. Having attended an appeal or two I thought the judge at the appeal hearing was a little distant. His reasons for the decision didn't address the issues, and I don't honestly expect the Upper Tribunal to either.

Thanks for that link, I'll look that up. Interesting and unknown to me that regulations can be found ultra vires due to non-compliance with the SSAC.

Do you know what happens next if the regulations are found to be ultra vires?

It's horses for courses, jack1966 (and Bookworm): for a variety of reasons her girls aren't capable of being left alone all day, and my friend would be negligent if she didn't act accordingly. There's no disability involved, and the girls are home educated by choice (as were three of her other children).

It's not a question of a lack of desire for a job. Nothing would please my friend more than to sever all involvement with Jobcentre Plus, but for the moment she is at their mercy.

Yes, Bookworm, they are deregistered.

You say: "...if she's home educating, then she shouldn't have her benefits stopped, as she is effectively having a full-time job, which is educating the children". This is the crux of the challenge under Article 8 of ECHR, i.e.right to family life. Lone parents whose children attend school are only expected to work during school hours (and a few hours before and/or after). My friend, however, is expected to work evenings, which at the very least is discriminative against home educating lone parents.

Education Otherwise - yes, they too were extremely concerned about the new regulations.

The new regulations are pretty clear (I think) that Decision Makers must take into account the availability of childcare when deciding whether to apply a sanction.

There is no leeway in law, though, as far as I can fathom it, to allow a claim for JSA if the claimant is not actually available for work. Even if suitable childcare existed, the logistics of arranging it all would take more than the 28 days. Therefore, in reality, my friend is not available for work, and now Jobcentre Plus has suspended her JSA because she isn't available (or rather because there is a doubt about whether she is available).

I believe they would be correct in law if they stopped her claim for JSA. This would mean applying for hardship payments and waiting it out until the likely Judicial Review, unless another means can be found to get it sorted. If they do stop her JSA, that would go to show she was entitled to no benefit under any heading, yet she has a pre-existing entitlement, so I would guess that ultra vires would be the logical finding.

Thanks for the link, Bookworm, I'll pass it on.

I must admit I missed the bit about them being 14 in this case; that would weaken then arguments a lot. I understand the changes do apply to much younger children though so the principle is there.

I have been thinking about this today on and off, and the more I think of it, the more I am sure that the angle has to be on the HE thing, in that forcing her to forfeit her benefits if she wants to keep on HEing is a breach of her human right to educate her kids the way she chooses. (Declaration of Human Rights, article 26, #3): "Parents have a prior right to choose the kind of education that shall be given to their children".

I should think that a breach of Human Rights is "higher" than the Social Security Regs and therefore that should be her angle of attack. IMO. ;-)

Interesting angle, Bookworm, and might have some relevance, although no one has yet said that she should send her children to school, rather than HE them.

At the moment her right to home educate and therefore to "choose the kind of education that shall be given to [her] children" has not actually been infringed, so i'm not sure how a challenge on these grounds would go.

Thanks for thinking about this issue, and taking the time to reply.

Best Regards

Their argument will likely be that she is not being forced to forfeit her benefit. It will likely be argued that as she is home educating, she can set the hours of education. I know a few people who home educate in the weekends, and as they don't have "term time", they HE all year round, which in addition to 1:1 tuition, reduces the amount of hours per day of education, enabling them to work in full time (though some are part time) employment. It could also be argued that she could work from home. Essentially their side of the argument is that she is fit for work and can be available, but is choosing not to be. So what your friend needs to do, is find an argument to counter act that.

Hello there, ErikaPNP.

You seem to have a good grasp of what's going on here. You make a very relevant point regarding working from home, which she could - at least in theory - do.

You say "...their side of the argument is that she is fit for work and can be available, but is choosing not to be". I'm having some difficulty over the correct meaning of 'available for work'. She has told JC Plus that she is available for work during those hours that childcare is available, and can take up work as soon as that childcare becomes available, and that when it is possible for these arrangements to be made, they can be, otherwise not. She also pointed out that none of this is her fault, but is due to a failure to implement the promised childcare provisions.

So, is she in actual fact available for work? Counting work from home jobs, of which there seems to be few (bearing in mind that JSA regulations require you to apply for a minimum of three jobs per week), then yes, she is available for work. But as there is no childcare provision whatsoever if she were to go out to work, is she therefore 'available for work' in any real or legal sense at all?

Regards

Precisely, and I think that the angle I mentioned would be worth going for.

The logic is there: she's HE, which is her absolute right to choose how the kids are to be educated, and has the right not to be treated any less favourably than parents whose kids go to school. In order to HE, she has to be available to do so, and one of the aspects of HE is that it isn't necessarily set to a specific timetable, therefore it is unfair to expect her to be available for work. The other argument is that she effectively already has a FT job, which is HE, for which she is not getting paid.

Sam, I didn't say anything about her being told to get the kids back into school, but the end result is the same: If she is being forced to work by cutting off her benefits, then her choice to HE is being curtailed, and that is where the breach of her human rights occur. Do you see where I am going with this?

Breach of human rights is a mighty argument and my instinct would be that it's one to be used to the max, but that's JMO.

Sorry Sam, it took me that long to post my answer.

Why doesn't she kill two birds with one stone? Become a Childminder. Her business, for which she sets the hours and works from home. My previous childminder was a home educator.

I think the ages of the children will be a huge factor in this.

I agree with you.

As for childminding, the costs are horrendous, and then you have the CRB check, and your accomodation must be suitable.... And once you've done all that, did you know they have changed the rules again so that now a registered childminder must look after at least 2 children to qualify?

(my grandson's other grandmother did the whole thing so that she could be his childminder and this way, she'd get paid and mum could still go to college, and after she'd got it all sorted, they told her that she would have to look after another child... )

Anyway, I agree that if at all possible, it would be great to be able to work with the system etc, but we all know it's not always that simple.

The logic is there: she's HE, which is her absolute right to choose how the kids are to be educated, and has the right not to be treated any less favourably than parents whose kids go to school. In order to HE, she has to be available to do so, and one of the aspects of HE is that it isn't necessarily set to a specific timetable, therefore it is unfair to expect her to be available for work. The other argument is that she effectively already has a FT job, which is HE, for which she is not getting paid.

.

Yes, exactly the arguments put forward in her appeal.

Why doesn't she kill two birds with one stone? Become a Childminder. Her business, for which she sets the hours and works from home. My previous childminder was a home educator.

 

I think the ages of the children will be a huge factor in this.

Suggested this! She reckons it's not possible, but I think it's a great idea! The one main factor is becoming OFSTED registered, required by the Tax Credit Office in order to get refund of costs. Do you really think she could be a paid carer for her kids? It does seem a little far-fetched, but great if it could be done.

 

PS: She needs to read this http://www.freedomforchildrentogrow.org/notesnewSSloneparentregsoct08.pdf and point out to section running from 4.28 onwards.

Have read most of this material, but in different format/presentation.

"7.1 Accordingly, we recommend that you do not proceed with these proposed regulations.", said the SSAC.

"So what?", said the government.

Error: cannot find delete button

 

Sam, I didn't say anything about her being told to get the kids back into school, but the end result is the same: If she is being forced to work by cutting off her benefits, then her choice to HE is being curtailed, and that is where the breach of her human rights occur. Do you see where I am going with this?

 

Yes, I think I get it - definitely worth investigating.